EXHIBIT
10.3


 


EXECUTION COPY 

COMMON/PREFERRED


 




 





SECURITIES PURCHASE AGREEMENT


 


dated as of April 7,
2008



between


 


WASHINGTON MUTUAL, INC.


 


and


 


THE PURCHASERS NAMED HEREIN




 





 

















 


Table of Contents


	
   

  	
  Page

  
	
  ARTICLE I

  	
   

  
	
  Purchase; Closings

  	
   

  
	
   

  	
   

  
	
  1.1

  	
  Purchase

  	
  3

  
	
  1.2

  	
  Closing

  	
  3

  
	
   

  	
   

  
	
  ARTICLE II

  	
   

  
	
  Representations and Warranties

  	
   

  
	
   

  	
   

  
	
  2.1

  	
  Disclosure

  	
  4

  
	
  2.2

  	
  Representations and Warranties of the Company

  	
  5

  
	
  2.3

  	
  Representations and Warranties of the Purchaser

  	
  10

  
	
   

  	
   

  
	
  ARTICLE III

  	
   

  
	
  Additional Agreements

  	
   

  
	
   

  	
   

  
	
  3.1

  	
  Other Actions

  	
  12

  
	
  3.2

  	
  Exchange Listing

  	
  13

  
	
  3.3

  	
  Legend

  	
  14

  
	
  3.4

  	
  Indemnity

  	
  14

  
	
  3.5

  	
  Registration Rights

  	
  16

  
	
   

  	
   

  
	
  ARTICLE IV

  	
   

  
	
  Termination

  	
   

  
	
   

  	
   

  
	
  4.1

  	
  Termination

  	
  24

  
	
  4.2

  	
  Effects of Termination

  	
  24

  
	
   

  	
   

  
	
  ARTICLE V

  	
   

  
	
  Miscellaneous

  	
   

  
	
   

  	
   

  
	
  5.1

  	
  Survival

  	
  24

  
	
  5.2

  	
  Standard

  	
  24

  
	
  5.3

  	
  Amendment

  	
  25

  
	
  5.4

  	
  Waivers

  	
  25

  
	
  5.5

  	
  Counterparts and Facsimile

  	
  25

  
	
  5.6

  	
  Governing Law

  	
  25

  
	
  5.7

  	
  WAIVER OF JURY TRIAL

  	
  25

  
	
  5.8

  	
  Notices

  	
  25

  
	
  5.9

  	
  Entire Agreement, Etc

  	
  26

  
	
  5.10

  	
  Other Definitions

  	
  26

  
	
  5.11

  	
  Captions

  	
  27

  
	
  5.12

  	
  Severability

  	
  27

  
	
  5.13

  	
  No Third Party Beneficiaries

  	
  27

  
						



 

















 


	
  5.14

  	
  Time of Essence

  	
  27

  
	
  5.15

  	
  Specific Performance

  	
  27

  



 

















 


INDEX OF DEFINED TERMS


 


	
  Term

  	
   

  	
  Location of

  Definition

  
	
  Affiliate

  	
   

  	
  5.10(a)

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Beneficially Own

  	
   

  	
  3.1(d)

  
	
  Beneficial Owner

  	
   

  	
  3.1(d)

  
	
  Benefit Plan

  	
   

  	
  2.3(e)(4)

  
	
  Board of Directors

  	
   

  	
  2.2(c)(1)

  
	
  business day

  	
   

  	
  5.10(e)

  
	
  Capitalization Date

  	
   

  	
  2.2(b)

  
	
  Closing

  	
   

  	
  1.2(a)

  
	
  Closing Date

  	
   

  	
  1.2(a)

  
	
  Common Stock

  	
   

  	
  Recitals

  
	
  Company

  	
   

  	
  Preamble

  
	
  Company Financial Statements

  	
   

  	
  2.2(f)

  
	
  Company Preferred Stock

  	
   

  	
  2.2(b)

  
	
  Company SEC Reports

  	
   

  	
  2.2(g)

  
	
  Company Subsidiary

  	
   

  	
  2.2(c)

  
	
  Convertible Preferred

  	
   

  	
  Recitals

  
	
  Disclosure Package

  	
   

  	
  3.5(a)(1)

  
	
  Disclosure Schedule

  	
   

  	
  2.1(a)

  
	
  ERISA

  	
   

  	
  2.3(e)(5)

  
	
  Exchange Act

  	
   

  	
  2.2(g)

  
	
  Free Writing Prospectus

  	
   

  	
  3.5(g)(2)

  
	
  Governmental Entities

  	
   

  	
  2.2(d)(1)

  
	
  HOLA

  	
   

  	
  2.2(a)

  
	
  Holder

  	
   

  	
  3.5(a)(3)

  
	
  Holder Free Writing Prospectus

  	
   

  	
  3.5(a)(4)

  
	
  Holders’ Counsel

  	
   

  	
  3.5(d)(2)

  
	
  Indemnified Party

  	
   

  	
  3.4(b)

  
	
  indemnified person

  	
   

  	
  3.5(g)(3)

  
	
  indemnifying person

  	
   

  	
  3.5(g)(3)

  
	
  Liability

  	
   

  	
  3.5(g)(1)

  
	
  Liens

  	
   

  	
  2.2(c)

  
	
  Losses

  	
   

  	
  3.4(a)

  
	
  Material Adverse Effect

  	
   

  	
  2.1(b)

  
	
  person

  	
   

  	
  5.10(f)

  
	
  Previously Disclosed

  	
   

  	
  2.1(c)

  
	
  Purchasers

  	
   

  	
  Preamble

  
	
  QIB

  	
   

  	
  2.3(e)(1)

  
	
  Registrable Securities

  	
   

  	
  3.5(a)(5)

  
	
  Registration Expenses

  	
   

  	
  3.5(d)(1)

  
	
  SEC

  	
   

  	
  2.1(c)

  
	
  Shares

  	
   

  	
  Recitals

  
	
  Securities Act

  	
   

  	
  2.2(g)(1)

  



 


1

















 


	
  Term

  	
   

  	
  Location of

  Definition

  
	
  Selling Holders

  	
   

  	
  3.5(a)(6)

  
	
  Series R Preferred Stock

  	
   

  	
  2.2(b)

  
	
  Shareholder Approval

  	
   

  	
  3.1(b)

  
	
  Shareholder Proposals

  	
   

  	
  3.1(b)

  
	
  Shelf Period

  	
   

  	
  3.5(b)(1)

  
	
  Shelf Registration

  	
   

  	
  3.5(b)(1)

  
	
  Shelf Registration Statement

  	
   

  	
  3.5(b)(1)

  
	
  Significant Subsidiary

  	
   

  	
  2.2(c)

  
	
  Subsidiary

  	
   

  	
  2.2(c)

  
	
  WM Funding

  	
   

  	
  2.2(b)

  
	
  WMB

  	
   

  	
  2.2(a)

  



 


2

















 


SECURITIES
PURCHASE AGREEMENT, dated as of April 7, 2008
(this “Agreement”),  between Washington Mutual, Inc., a
Washington corporation (the “Company”),  and
the purchasers named on the signature pages to this Agreement (the “Purchasers”).


 


RECITALS:


 


WHEREAS,
the Company intends to sell to each Purchaser, and each Purchaser severally and
not jointly intends to purchase from the Company at the Closing (as defined
below), shares of Common Stock, no par value, of the Company (the “Common Stock”) and,
in the case of certain purchasers, shares of a series of contingent convertible
perpetual non-cumulative preferred stock, no par value, of the Company (the “Convertible Preferred Stock”, and the shares of Common Stock
and Convertible Preferred Stock so purchased pursuant hereto, the “Shares”), as described herein with respect to such
Purchaser.


 


NOW,
THEREFORE, in consideration of the premises, and of
the representations, warranties, covenants and agreements set forth herein, the
parties agree as follows:


 


ARTICLE I


 


PURCHASE; CLOSINGS


 


1.1   Purchase.
On the terms and subject to the conditions set forth herein, each Purchaser,
severally and not jointly, agrees that it will purchase from the Company, and
the Company agrees that it will sell to each such Purchaser, the number of
Shares set forth opposite such Purchaser’s name on such Purchaser’s signature
page to this Agreement.


 


1.2   Closing.


 


(a)   For each Purchaser, subject
to the satisfaction or waiver of the conditions set forth in this Agreement
with respect to the purchase and sale by such Purchaser, the closing of the
purchase and sale of the Shares pursuant hereto (the “Closing”)  shall occur at 9:30 a.m., New York
time, on April 11, 2008, or on such later date as the Company may by
written notice specify to such Purchaser, at the offices of Simpson Thacher &
Bartlett LLP located at 425 Lexington Avenue, New York, New York 10017 or such
other date or location as agreed by the parties. The date of the Closing is
referred to as the “Closing Date.”


 


(b)   Subject to the satisfaction
or waiver of the conditions to the Closing in Section 1.2(c), at the
Closing, the Company will deliver to each Purchaser one stock certificate
representing the total number of Shares of Common Stock and one stock
certificate representing the total number of shares of Convertible Preferred
Stock to be purchased by such Purchaser pursuant hereto, in each case registered
in the name of such Purchaser or such other person (which shall be an Affiliate
or nominee of such Purchaser or such Affiliate) as such Purchaser may have
designated in writing to the Company not less than one business day prior to
the Closing, against payment therefor by wire transfer by such Purchaser of
immediately available United States funds to a bank account designated by the
Company, for an aggregate purchase price equal to the amount set forth on such
Purchaser’s signature page to this Agreement.


 


3

















 


(c)   Closing Conditions.


 


(1)   The
respective obligations of each Purchaser on the one hand, and the Company, on
the other hand, to consummate the Closing is subject to the fulfillment or
written waiver by the applicable Purchaser and the Company prior to the Closing
of the following conditions:


 


(A)   no provision of any applicable law or
regulation and no judgment, injunction, order or decree shall prohibit the
Closing;


 


(B)   the shares of Common Stock to be issued
at the Closing shall have been authorized for listing on the New York Stock
Exchange or such other market on which the Common Stock is then listed or
quoted, subject to official notice of issuance; and


 


(C)   the Company shall have issued and sold
shares of capital stock on or after the date hereof and on or prior to the
Closing Date and received aggregate proceeds in respect thereof (including the
proceeds to be received from such Purchaser) of not less than $4.9 billion in
the aggregate; provided, that for purposes of
this clause (C), to the extent there exist at Closing contractual obligations
of purchasers to deliver funds in respect of any such sales within not more
than 14 days following Closing, the funds subject to such contractual
obligations shall be considered to be proceeds received for purposes of this
provision.


 


(2)   The
obligation of each Purchaser to consummate the purchase of Shares to be
purchased by it at the Closing is also subject to the fulfillment or written
waiver by such Purchaser prior to the Closing of each of the following
conditions:


 


(A)   the Company shall have performed in all
material respects all obligations required to be performed by it at or prior to
Closing; and


 


(B)   such Purchaser shall have received a
certificate signed on behalf of the Company by a senior executive officer
certifying to the effect that the conditions set forth in Section 1.2(c)(2)(A) has
been satisfied.


 


ARTICLE II


 


REPRESENTATIONS
AND WARRANTIES


 


2.1  Disclosure. (a)  On
or prior to the date hereof, the Company delivered to each Purchaser and each
Purchaser delivered to the Company a schedule (“Disclosure Schedule”)  setting
forth, among other things, items the disclosure of which is necessary or
appropriate either in response to an express disclosure requirement contained
in a provision hereof or as an exception to one or more representations or
warranties contained in Section 2.2 with respect to the Company, or in Section 2.3
with respect to such Purchaser, or to one or more of its covenants contained in
Article III.


 


(b)  As used in this Agreement, any
reference to any fact, change, circumstance or effect being “material” with
respect to the Company means such fact, change, circumstance or 


 


4

















 


effect
is material in relation to the business, results of operations or financial
condition of the Company and the Company Subsidiaries taken as a whole. As used
in this Agreement, the term “Material
Adverse Effect” means any circumstance, event, change, development
or effect that, individually or in the aggregate, (1) is material and
adverse to the business, results of operations or financial condition of the
Company and Company Subsidiaries taken as a whole or (2) would materially
impair the ability of the Company to perform its obligations under this
Agreement or to consummate the Closing; provided, however, that
in determining whether a Material Adverse Effect has occurred, there shall be
excluded the following: (A) changes in generally accepted accounting
principles or regulatory accounting principles applicable to banks, savings
associations or their holding companies, (B) changes in laws, rules and
regulations of general applicability or interpretations thereof by Governmental
Entities, (C) actions or omissions of the Company taken in accordance with
the terms of this Agreement, (D) changes in general economic, monetary or
financial conditions, including changes in prevailing interest rates, credit
markets, secondary mortgage market conditions or housing price
appreciation/depreciation trends, (E) changes in the market price or
trading volumes of the Common Stock or the Company’s other securities, (F) the
failure of the Company to meet any internal or public projections, forecasts,
estimates or guidance (including guidance as to “earnings drivers”) for any
period ending on or after December 31, 2007, (G) changes in global or
national political conditions, including the outbreak or escalation of war or
acts of terrorism, and (H) the public disclosure of this Agreement or the
transactions contemplated hereby.


 


(c)  “Previously Disclosed”  means
information (1) set forth on the Disclosure Schedule or (2)  publicly
disclosed by the Company in the Company SEC Reports filed by it with or
furnished to the Securities and Exchange Commission (“SEC”)
and publicly available prior to the date of this Agreement (excluding any risk
factor disclosures contained in such documents under the heading “Risk Factors”
and any disclosure of risks included in any “forward-looking statements”
disclaimer or other statements that are similarly non-specific and are
predictive or forward-looking in nature).


 


2.2  Representations and
Warranties of the Company. Except as Previously Disclosed, the Company
represents and warrants to the Purchasers as of the date of this Agreement
that:


 


(a)  
Organization and Authority. The Company is a corporation duly organized
and validly existing under the laws of the State of Washington, is duly
qualified to do business and is in good standing in all jurisdictions where its
ownership or leasing of property or the conduct of its business requires it to
be so qualified and where failure to be so qualified would have a Material
Adverse Effect, and has the corporate power and authority to own its properties
and assets and to carry on its business as it is now being conducted. The
Company is duly registered as a savings and loan holding company under the Home
Owners’ Loan Act, as amended (“HOLA”).
Washington Mutual Bank (“WMB”) is duly
organized and in good standing as a federal savings association under HOLA and
its deposits are insured by the Federal Deposit Insurance Corporation to the
fullest extent permitted by law. WMB is a member in good standing of the
Federal Home Loan Bank of San Francisco.


 


5

















 


(b)  
Capitalization. The authorized capital stock of the Company consists of
1,600,000,000 shares of Common Stock and 10,000,000 shares of preferred stock,
no par value, of the Company (the “Company Preferred Stock”).
As of the close of business on March 31, 2008 (the “Capitalization
Date”), there were 882,140,637 shares of Common Stock outstanding
and 3,000,500 shares of Preferred Stock outstanding, consisting of 500 shares
of Series K Perpetual Non-cumulative Floating Rate Preferred Stock and
3,000,000 shares of 7.75% Series R Non-cumulative Perpetual Convertible
Preferred Stock (the “Series R Preferred
Stock”). As of the close of business on the Capitalization Date, no
shares of Common Stock or Preferred Stock were reserved or to be made available
for issuance, except for (1) (A) 83,311,421 shares of Common Stock
reserved or to be made available for issuance upon the exercise of options to
purchase Common Stock, (B) 2,186,394 share of Common Stock reserved or to
be made available for issuance upon the vesting of restricted stock units and (C) 949,369
shares of Common Stock reserved or to be made available for issuance upon the
vesting of performance share awards, (2) 834,322 shares of Common Stock
reserved or to be made available for issuance under the 2002 Employee Stock
Purchase Plan, (3) 563 shares of Common Stock reserved or to be made
available for issuance upon conversion of the Company’s 2.75% Convertible Cash
to Accreting Senior Notes due March 15, 2016, (4) 1,176,502 shares of
Common Stock reserved or to be made available for issuance upon conversion of
the Company’s 4% Convertible Senior Notes due May 15, 2008, (5) 141,176,471
shares of Common Stock reserved or to be made available for issuance upon
conversion of the Series R Preferred Stock, (6) 29,242,092 shares of
Common Stock reserved or to be made available for issuance pursuant to the
Company’s Trust Warrants issued pursuant to the Warrant Agreement, dated as of April 30,
2001 between the Company and The Bank of New York, (7) approximately
11,900,000 shares of Common Stock reserved or to be made available for issuance
pursuant to Litigation Warrants issued pursuant to the Amended and Restated
Warrant Agreement, dated as of March 11, 2003 between the Company and
Mellon Investor Services LLC, (8) 700,000 shares of Company Preferred
Stock designated as Series RP Preferred Stock, par value $0.01 per share,
reserved or to be made available for issuance upon the exercise of rights
granted under the Rights Agreement, dated as of December 20, 2000, between
the Company and Mellon Investor Services, L.L.C., (9) 1,250 shares of Series I
Perpetual Non-cumulative Fixed-to-Floating Rate Preferred Stock reserved or to
be made available for issuance upon conversion of the Series 2006-A
Convertible Preferred Securities issued by Washington Mutual Preferred Funding
LLC (“WM Funding”), (10) 750 shares of Series J
Perpetual Non-cumulative Fixed Rate Preferred Stock reserved or to be made
available for issuance upon conversion of the Series 2006-B Convertible
Preferred Securities of WM Funding, (11) 500 shares of Series L Perpetual
Non-cumulative Fixed-to-Floating Rate Preferred Stock reserved or to be made
available for issuance upon conversion of the Series 2006-C Convertible
Preferred Securities of WM Funding, (12) 500 shares of Series M Perpetual
Non-cumulative Fixed-to-Floating Rate Preferred Stock reserved or to be made
available for issuance upon conversion of the Series 2007-A Convertible
Preferred Securities of WM Funding, and (13) 1,000 shares of WM Series N
Non-cumulative Fixed-to-Floating Rate Preferred Stock reserved or to be made
available for issuance upon conversion of the Series 2007-B Convertible
Preferred Securities of WM Funding. All of the issued and outstanding shares of
Common Stock and Company Preferred Stock have been duly 


 


6

















 


authorized and
validly issued and are fully paid, nonassessable and free of preemptive rights,
with no personal liability attaching to the ownership thereof.


 


(c)  
Company’s Subsidiaries. Exhibit 21 to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2007 sets forth a
correct and complete list of the Company Subsidiaries, including the Company’s
Significant Subsidiaries. Each of the Company’s Significant Subsidiaries is
duly organized and validly existing under the laws of its jurisdiction of
organization, is duly qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified and where failure to be so qualified or
in good standing would have a Material Adverse Effect. The Company owns,
directly or indirectly, all of the issued and outstanding shares of capital
stock of or all other equity interests in each of the Company Subsidiaries,
free and clear of any liens, charges, encumbrances, adverse rights or claims
and security interests whatsoever (“Liens”), and
all of such shares are duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. As used herein, “Subsidiary”
means, with respect to any  person, any
corporation, partnership, joint venture, limited liability company or other
entity (1) of which such person or a subsidiary of such person is a
general partner or (2) at least a majority of the securities or other
interests of which having by their terms ordinary voting power to elect a majority
of the board of directors or persons performing similar functions with respect
to such entity is directly or indirectly owned by such person and/or one or
more subsidiaries thereof; “Company Subsidiary”
means any Subsidiary of the Company; and “Significant Subsidiary”
means, with respect to any person, any Subsidiary that would constitute a “significant
Subsidiary” of such person within the meaning of Rule 1-02 of Regulation
S-X of the SEC.


 


(d)  
Authorization. (1) The Company has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby have been
duly authorized by the board of directors of the Company (the “Board of Directors”). Subject to such approvals of federal,
state, local and foreign authorities, agencies, courts, commissions or other
entities, including stock exchanges and other self-regulatory organizations
(collectively, “Governmental Entities”)  referred to in Section 2.2(d), and
assuming due authorization, execution and delivery by the applicable Purchaser,
this Agreement is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, subject bankruptcy,
insolvency, moratorium, reorganization or similar laws affecting creditors
generally or by general equitable principles (whether applied in equity or at
law). No vote of the Company’s shareholders is required for the execution and
delivery by the Company of this Agreement, the performance by it of its
obligations hereunder or the consummation by it of the transactions
contemplated hereby, except that the Shareholder Approvals are required in
connection with the conversion of the Convertible Preferred Stock.


 


(2)  Neither
the execution and delivery by the Company of this Agreement, nor the
consummation of the transactions contemplated hereby, nor compliance by the 


 


7

















 


Company with any of the provisions hereof, will (i) violate,
conflict with, or result in a breach of any provision of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
of, or result in the creation of any Lien upon any of the material properties
or assets of the Company or any Company Subsidiary under any of the terms,
conditions or provisions of (A) its articles of incorporation or bylaws
(or similar governing documents) or (B) any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which the Company or any Company Subsidiary is a party or by
which it may be bound, or to which the Company or any Company Subsidiary or any
of the properties or assets of the Company or any Company Subsidiary may be
subject, or (ii) subject to compliance with the statutes and regulations
referred to in Section 2.2(d), violate any statute, rule or
regulation or, to the knowledge of the Company, any judgment, ruling, order,
writ, injunction or decree applicable to the Company or any Company Subsidiary
or any of their respective properties or assets, except in the case of clauses
(i)(B) and (ii) for such violations, conflicts and breaches as would
not reasonably be expected to have a Material Adverse Effect.


 


(e)  
Governmental Consents. Other than as Previously Disclosed, and the securities
or blue sky laws of the various states, no material notice to, filing with,
exemption or review by, or authorization, consent or approval of, any
Governmental Entity, nor expiration or termination of any statutory waiting
periods, is necessary for the consummation by the Company of the transactions
contemplated by this Agreement.


 


(f)  
Financial Statements. The consolidated balance sheets of the Company and
the Company Subsidiaries as of December 31, 2007 and 2006 and the related
consolidated statements of income, shareholders’ equity and cash flows for the
three years ended December 31, 2007, together with the notes thereto
(collectively, the “Company Financial
Statements”) included in the Company’s Annual Report on Form 10-K
for the fiscal year ended December 31, 2007, as filed with the SEC, have
been prepared in accordance with generally accepted accounting principles
applied on a consistent basis and present fairly in all material respects the
consolidated financial position of the Company and the Company Subsidiaries as
of the dates set forth therein and the consolidated results of operations and
cash flows of the Company and the Company Subsidiaries for the periods stated
therein.


 


(g)  
SEC Reports. (1) Since December 31, 2005, the Company and each
Company Subsidiary has filed all material reports, registration statements,
proxy statements and other documents, together with any required amendments
thereto, that it was required to file with any SEC (the foregoing,
collectively, the “Company SEC Reports”).
As of its date (or if amended prior to the date of this Agreement, as of the
date of such amendment), each Company SEC Report did not contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made in it, in the light of the circumstances
under which they were made, not misleading and complied as to form in all
material respects with the applicable requirements of the Securities Act of
1933, as amended (the “Securities Act”),
and the Securities Exchange Act of 1934, as amended (the “Exchange Act”).


 


8














 


(2)  The
records, systems, controls, data and information of the Company and the Company
Subsidiaries are recorded, stored, maintained and operated under means
(including any electronic, mechanical or photographic process, whether
computerized or not) that are under the exclusive ownership and direct control
of the Company or the Company Subsidiaries or their accountants (including all
means of access thereto and therefrom), except for any non-exclusive ownership
and non-direct control that would not reasonably be expected to have a Material
Adverse Effect. The Company (A) has implemented and maintains disclosure
controls and procedures (as defined in Rule 13a-15(e) of the Exchange
Act) to ensure that material information relating to the Company, including the
consolidated Company Subsidiaries, is made known to the chief executive officer
and the chief financial officer of the Company by others within those entities,
and (B) has disclosed, based on its most recent evaluation prior to the
date hereof, to the Company’s outside auditors and the audit committee of the
Board of Directors (x) any significant deficiencies and material
weaknesses in the design or operation of internal controls over financial
reporting (as defined in Rule 13a-15(f) of the Exchange Act) that are
reasonably likely to adversely affect the Company’s ability to record, process,
summarize and report financial information and (y) any fraud, whether or
not material, that involves management or other employees who have a
significant role in the Company’s internal controls over financial reporting.


 


(h)  
Offering of Securities. Neither the Company nor any person acting on its
behalf has taken any action (including any offering of any securities of the
Company under circumstances which would require the integration of such
offering with the offering of any of the Shares to be issued pursuant to this
Agreement under the Securities Act and the rules and regulations of the
SEC thereunder) which might subject the offering, issuance or sale of any of the
Shares to the Purchasers pursuant to this Agreement to the registration
requirements of the Securities Act.


 


(i)  
Status of Shares. The shares of Common Stock and Convertible Preferred
Stock to be issued pursuant to this Agreement have been duly authorized by all
necessary corporate action. When issued and sold against receipt of the
consideration therefor as provided in this Agreement, such shares of Common
Stock and Convertible Preferred Stock will be validly issued, fully paid and
nonassessable, will not subject the holders thereof to personal liability and
will not be subject to preemptive rights of any other shareholder of the
Company. The shares of Common Stock issuable upon the conversion of the
Convertible Preferred Stock will, upon receipt of the Shareholder Approvals and
filing of the related Articles of Amendment to the Company’s Restated and
Amended Articles of Incorporation with the Washington Secretary of State, have
been duly authorized by all necessary corporate action and when so issued upon
such conversion will be validly issued, fully paid and nonassessable, will not
subject the holders thereof to personal liability and will not be subject to
preemptive rights of any other shareholder of the Company.


 


(j)  
Litigation and Other Proceedings. There is no pending or, to the
knowledge of the Company, threatened, claim, action, suit, investigation or
proceeding, against the Company or any Company Subsidiary, nor is the Company
or any Company Subsidiary 


 


9

















 


subject to any order,
judgment or decree, in each case except as would not reasonably be expected to
have a Material Adverse Effect.


 


(k)  
Compliance with Laws. The Company and each Company Subsidiary have all
material permits, licenses, authorizations, orders and approvals of, and have
made all filings, applications and registrations with, Governmental Entities
that are required in order to permit them to own or lease their properties and
assets and to carry on their business as presently conducted and that are
material to the business of the Company or such Company Subsidiary. The conduct
by the Company and each Company Subsidiary of their business as presently
conducted does not violate or infringe any applicable material domestic (federal,
state or local) or foreign law, statute, ordinance, license or regulation in
any material respect. Neither the Company nor any Company Subsidiary is in
material default under any order, license, regulation, demand, writ, injunction
or decree of any Governmental Entity. The Company and the Company Subsidiaries
currently are complying with all applicable federal, state, local and foreign
laws, regulations, rules, judgments, injunctions or decrees, except to the
extent any noncompliance would not reasonably be expected to have a Material
Adverse Effect.


 


2.3  Representations and
Warranties of the Purchaser. Each Purchaser, severally and not jointly,
hereby represents and warrants to the Company that as of the date of this
Agreement:


 


(a)  
Organization and Authority. Such Purchaser is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, is duly qualified to do business and is in good standing in all
jurisdictions where its ownership or leasing of property or the conduct of its
business requires it to be so qualified and where failure to be so qualified
would be reasonably expected to materially adversely affect such Purchaser’s
ability to perform its obligations under this Agreement or consummate the transactions
contemplated hereby on a timely basis, and such Purchaser has the corporate or
other power and authority to own its properties and assets and to carry on its
business as it is now being conducted.


 


(b)  
Authorization. (1)  Such Purchaser has the corporate or other
power and authority to enter into this Agreement and to carry out its
obligations hereunder. The execution, delivery and performance of this
Agreement by such Purchaser and the consummation of the transactions
contemplated hereby have been duly authorized by the Purchaser’s board of
directors, general partner  or managing
members, as the case may be, and no further approval or authorization by any of
its shareholders, partners or other equity owners, as the case may be, is
required. This Agreement is a valid and binding obligation of such Purchaser
enforceable against such Purchaser in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, moratorium,
reorganizations or similar laws affecting creditors generally or by general
equitable principles (whether applied in equity or at law).


 


(2)   Other than the
securities or blue sky laws of the various states, no notice to, filing with,
exemption or review by, or authorization, consent or approval of, any
Governmental Entity, nor expiration or termination of any 


 


10

















 


statutory waiting period, is necessary for
the consummation by such Purchaser of the transactions contemplated by the this
Agreement.


 


(c)  
Ownership. As of the date of this Agreement, such Purchaser and its
Affiliates are the owners of record or the Beneficial Owners of the number of
shares of Common Stock or securities convertible into or exchangeable for
Common Stock set forth on such Purchaser’s signature page.


 


(d)  
Financial Capability. Such Purchaser currently has available funds
necessary to consummate the Closing on the terms and conditions contemplated by
this Agreement


 


(e)  
Purchase for Investment.


 


(1)   Such
Purchaser (and any investor account for which it is purchasing Shares) is
either (i) a qualified institutional buyer as defined under Rule 144A
under the Securities Act (“QIB”) or (ii) an
institutional “accredited investor” as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act, and has such knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investment in the Shares, and such Purchaser (and
any investor account for which it is purchasing Shares) is able to bear the
economic risk of its investment and can afford a complete loss of its
investment.


 


(2)   Such
Purchaser understands and agrees on behalf of itself and on behalf of any
investor account for which it is purchasing Shares, and each subsequent holder
of a Security by its acceptance thereof will be deemed to agree, that the
Shares are being offered in a transaction not involving any public offering
within the meaning of the Securities Act, that the Shares have not been and,
except as contemplated by Section 3.5, will not be, registered under the
Securities Act and that, unless the Shares are sold in a registered offering
under the Securities Act, (i) such Purchaser may offer, sell, pledge or
otherwise transfer any of the Shares only to a person whom the seller
reasonably believes is a QIB in a transaction not involving a public offering
and (ii) if prior to the expiration of the applicable holding period
specified in Rule 144(k) of the Securities Act (or any successor
provision) such Purchaser decides to offer, resell, pledge or otherwise
transfer any Shares, such Shares may be offered, resold, pledged or otherwise
transferred only (A) to a person whom the seller reasonably believes is a
QIB in a transaction not involving a public offering, (B) pursuant to an
exemption from registration under the Securities Act provided by Rule 144
thereunder (if available), (C) pursuant to an effective registration
statement under the Securities Act, or (D) to the Company or one of its
subsidiaries, in each of cases (A) through (D) in accordance with any
applicable securities laws of any State of the United States, and that (iii) such
Purchaser will, and each subsequent holder is required to, notify any
subsequent purchaser of the Shares from it of the resale restrictions referred
to in (i) and (ii) above, as applicable, and will provide the Company
and the transfer agent such certificates and other information as they may
reasonably require to confirm that the transfer by it complies with the
foregoing restrictions, if applicable.


 


11

















 


(3)   Such
Purchaser acknowledges that it (i) has conducted its own investigation of
the Company, (ii) has had access to the Company’s public filings with the
Securities and Exchange Commission and to such financial and other information
as it deems necessary to make its decision to purchase the Shares, and (iii) has
been offered the opportunity to ask questions of the Company and received
answers thereto, as it deemed necessary in connection with the decision to
purchase the Shares.


 


(4)   The
Shares to be purchased by such Purchaser are not being acquired, directly or
indirectly, with the assets of any “employee benefit plan” (a “Benefit Plan”) within the meaning of Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or, if the assets of a Benefit Plan are being used,
directly or indirectly, for such acquisition, neither the acquisition nor
holding of such Shares will result in a nonexempt prohibited transaction under
ERISA or the Internal Revenue Code of 1986, as amended.


 


(5)   Such
Purchaser is acquiring the Shares for its own account, and not with a view
toward, or for sale in connection with, any distribution thereof in violation
of any federal or state securities or “blue sky” law, or with any present
intention of distributing or selling such Shares in violation of the Securities
Act.


 


(6)   Such
Purchaser understands that (i) the Shares are being offered and sold
without registration under the Securities Act in a transaction that is exempt
from the registration requirements of that Act, (ii) such exemption
depends, in part, on the accuracy and truthfulness of the foregoing
representations of such Purchaser and (iii) the Company will rely upon the
truth and accuracy of the foregoing representations, acknowledgements and
agreements and agrees that if any of the representations and acknowledgements
deemed to have been made by it by its purchase of the Shares is no longer accurate,
it shall promptly notify the Company. If such Purchaser is acquiring Shares as
a fiduciary or agent for one or more investor accounts, such Purchaser
represents that is has sole investment discretion with respect to each such
account and it has full power to make the foregoing representations,
acknowledgements and agreements on behalf of such account.


 


(7)   Such
Purchaser understands that nothing in this Agreement, the Company SEC Reports
or any other materials presented to such Purchaser in connection with the
purchase and sale of the Shares constitutes legal, tax or investment advice.
Such Purchaser has consulted such legal, tax and investment advisors as it, in
its sole discretion, has deemed necessary or appropriate in connection with its
purchase of the Shares and has made its own assessment and has satisfied itself
concerning the relevant tax and other economic considerations relevant to its
investment in the Shares.


 


ARTICLE III


 


ADDITIONAL
AGREEMENTS


 


3.1   Other Actions. (a)  
Each Purchaser, on the one hand, and the Company, on the other hand, will
cooperate and consult with the other and use reasonable best efforts to 


 


12

















 


prepare
and file all necessary documentation, to effect all necessary applications,
notices, petitions, filings and other documents, and to obtain all necessary
permits, consents, orders, approvals and authorizations of, or any exemption
by, all third parties and Governmental Entities, and the expiration or
termination of any applicable waiting periods, necessary or advisable to
consummate the transactions contemplated by this Agreement, and to perform the
covenants contemplated by this Agreement.


 


(b)   Unless this Agreement has
been terminated pursuant to Section 4.1, the Company shall call a special
meeting of its shareholders, promptly following the later of (1) the
Closing and (2) the 2008 annual meeting of its shareholders, to vote on
proposals (collectively, the “Shareholder Proposals”)
to (A) approve the conversion of the Convertible Preferred Stock into
Common Stock for purposes of Section 312.03 of the NYSE Listed Company
Manual, and (B) amend the Company’s articles of incorporation to, among
other things, increase the number of authorized shares of Common Stock to at
least such number as shall be sufficient to permit the full conversion of the
Convertible Preferred Stock into Common Stock. In connection with such meeting,
the Company shall promptly prepare and file with the SEC a preliminary proxy
statement, shall use its reasonable best efforts to respond to any comments of
the SEC or its staff and to cause a definitive proxy statement related to such
shareholders’ meeting to be mailed to the Company’s shareholders, and shall use
its reasonable best efforts to solicit proxies for such shareholder approval.
If at any time prior to such shareholders’ meeting there shall occur any event
that is required to be set forth in an amendment or supplement to the proxy
statement, the Company shall as promptly as practicable prepare and mail to its
shareholders such an amendment or supplement. In the event that the approvals
necessary to permit the Convertible Preferred Stock to be converted into Common
Stock are not obtained at such special shareholders meeting, the Company shall
include a proposal to approve such issuance at a meeting of its shareholders no
less than once in each subsequent annual period beginning in 2009 until such
approval is obtained.


 


(c)   Each Purchaser, on the one
hand, and the Company, on the other hand, agrees, upon request, to furnish the
other party with all information concerning itself, its Affiliates, directors,
officers, partners and shareholders and such other matters as may be reasonably
necessary or advisable in connection with the proxy statement in connection
with any such shareholders meeting and any other statement, filing, notice or
application made by or on behalf of such other party or any of its Subsidiaries
to any Governmental Entity in connection with the Closing and the other
transactions contemplated by this Agreement.


 


(d)   Unless this Agreement has
been terminated pursuant to Section 4.1, each Purchaser hereby agrees that
at any meeting of the shareholders of the Company held to vote on the
Shareholder Proposals, however called, such Purchaser shall vote, or cause to
be voted, all of the shares of Common Stock Beneficially Owned by such
Purchaser and its Affiliates in favor of the Shareholder Proposals. For
purposes of this Agreement, a person shall be deemed to “Beneficially
Own” any securities of which such person or any such person’s
Affiliates is considered to be a “Beneficial Owner”
under Rule 13d-3 under the Exchange Act.


 


3.2   Exchange Listing. The
Company shall promptly use its reasonable best efforts to cause the shares of
Common Stock to be issued pursuant to this Agreement to be 


 


13

















 


approved
for listing on the New York Stock Exchange, subject to official notice of
issuance, as promptly as practicable, and in any event before the Closing.


 


3.3   Legend. (a)  The
Purchasers agree that all certificates or other instruments representing the
Shares subject to this Agreement will bear a legend substantially to the
following effect:


 


THIS SECURITY (OR ITS PREDECESSOR) WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THIS
SECURITY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.


 


THE HOLDER OF THIS SECURITY AGREES FOR THE
BENEFIT OF THE COMPANY THAT THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (A) PURSUANT TO ANY OTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) SUBJECT TO THE ISSUER’S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (A) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO IT, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR (C) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
IN EACH OF CASES (A) THROUGH (C) IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.


 


(b)   Upon request of a Purchaser,
upon receipt by the Company of an opinion of counsel reasonably satisfactory to
the Company to the effect that such legend is no longer required under the
Securities Act and applicable state laws, the Company shall promptly cause the
legend to be removed from any certificate for any Shares to be Transferred in
accordance with the terms of this Agreement. Each Purchaser severally and not
jointly acknowledges that the Shares have not been registered under the
Securities Act or under any state securities laws and agrees that it will not
sell or otherwise dispose of any of the Shares, except in compliance with the
registration requirements or exemption provisions of the Securities Act and any
other applicable securities laws.


 


3.4   Indemnity. (a)  The
Company agrees to indemnify and hold harmless each Purchaser and its Affiliates
and each of their respective officers and directors, and each person who
controls such Purchaser within the meaning of the Exchange Act and the
regulations thereunder, to the fullest extent lawful, from and against any and
all actions, suits, claims, proceedings, costs, losses, liabilities, damages,
expenses (including reasonable attorneys’ fees and disbursements), amounts paid
in settlement and other costs (collectively, “Losses”)  arising out of or resulting from (1) subject
to the standard set forth in Section 5.2, any inaccuracy in or breach of
the Company’s representations or warranties in this Agreement, or (2) the
Company’s 


 


14

















 


breach
of agreements or covenants made by the Company in this Agreement; provided that Losses shall not include any
consequential or punitive damages.


 


(b)   A party entitled to
indemnification hereunder (each, an “Indemnified
Party”)  shall give
written notice to the Company  of
any claim with respect to which it seeks indemnification promptly after the
discovery by such Indemnified Party of any matters giving rise to a claim for
indemnification; provided that
the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Company of its obligations under this Section 3.4 unless
and to the extent that the Company shall have been actually prejudiced by the
failure of such Indemnified Party to so notify such party. Such notice shall
describe in reasonable detail such claim. In case any such action, suit, claim
or proceeding is brought against an Indemnified Party, the Indemnified Party
shall be entitled to hire, at its own expense, separate counsel and participate
in the defense thereof; provided, however, that
the Company shall be entitled to assume and conduct the defense thereof, unless
the counsel to the Indemnified Party advises such Indemnified Party in writing
that such claim involves a conflict of interest (other than one of a monetary
nature) that would make it inappropriate for the same counsel to represent both
the Company and the Indemnified Party, in which case the Indemnified Party
shall be entitled to retain its own counsel at the cost and expense of the
Company (except that the Company shall only be liable for the legal fees and
expenses of one law firm for all Indemnified Parties, taken together with
respect to any single action or group of related actions). If the Company
assumes the defense of any claim, all Indemnified Parties shall thereafter
deliver to the Company copies of all notices and documents (including court
papers) received by the Indemnified Party relating to the claim, and each
Indemnified Party shall cooperate in the defense or prosecution of such claim.
Such cooperation shall include the retention and (upon the Company’s request)
the provision to the Company of records and information that are reasonably
relevant to such claim, and making employees available on a mutually convenient
basis to provide additional information and explanation of any material
provided hereunder. The Company shall not be liable for any settlement of any
action, suit, claim or proceeding effected without its written consent; provided, however, that the Company shall
not unreasonably withhold or delay its consent. The Company further agrees that
it will not, without the Indemnified Party’s prior written consent (which shall
not be unreasonably withheld or delayed), settle or compromise any claim or
consent to entry of any judgment in respect thereof in any pending or
threatened action, suit, claim or proceeding in respect of which
indemnification has been sought hereunder unless such settlement or compromise
includes an unconditional release of such Indemnified Party from all liability
arising out of such action, suit, claim or proceeding.


 


(c)   The cumulative
indemnification obligation of the Company to any Purchaser and its related
Indemnified Parties for inaccuracies in or breaches of representations and
warranties shall in no event exceed the aggregate purchase price paid by such
Purchaser for the Shares purchased pursuant to this Agreement.


 


(d)   Any claim for indemnification
pursuant to this Section 3.4 for breach of any representation or warranty
can only be brought on or prior to the first anniversary of the Closing Date.


 


(e)   The indemnity provided for in
this Section 3.4 shall be the sole and exclusive monetary remedy of
Indemnified Parties after the Closing for any inaccuracy of any 


 


15

















 


representation
or warranty of the Company or any breach of any covenant or agreement of the
Company contained in this Agreement; provided
that nothing herein shall limit in any way any Purchaser’s remedies
in respect of fraud by any other party in connection with the transactions
contemplated hereby.


 


3.5   Registration Rights.


 


(a)   Defined Terms. As used
in this Section 3.5, the following terms have the following meanings:


 


(1)    “Disclosure Package”
means, with respect to any offering of securities, (i) the preliminary
Prospectus, (ii) each Free Writing Prospectus and (iii) all other
information, in each case, that is deemed, under Rule 159 promulgated
under the Securities Act, to have been conveyed to purchasers of securities at
the time of sale of such securities (including a contract of sale).


 


(2)   “Free Writing Prospectus” means any “free writing prospectus”
as defined in Rule 405 promulgated under the Securities Act.


 


(3)   “Holder” means any Purchaser and any Transferee of
Registrable Securities.


 


(4)   “Holder Free Writing Prospectus” means each Free Writing
Prospectus prepared by or on behalf of the relevant Holder or used or referred
to by such Holder in connection with the offering of Registrable Securities.


 


(5)   “Registrable Securities”  means (i) the Shares of Common Stock
purchased pursuant to this Agreement, (ii) the Shares of Convertible
Preferred Stock purchased pursuant to this Agreement, (iii) all shares of
Common Stock issued or issuable upon conversion of Shares of Convertible
Preferred Stock purchased pursuant to this Agreement and (iv) and any
securities which may be issued or issued or issuable in respect of shares
referred to in clauses (i) or (iii) by way of share dividend or share
split or in connection with a combination of shares, recapitalization,
reclassification, merger, amalgamation, arrangement, consolidation or other
reorganization. As to any particular securities constituting Registrable
Securities, such securities will cease to be Registrable Securities when (w) a
registration statement with respect to the sale by the Holder thereof shall
have been declared effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (x) such
securities have been sold to the public pursuant to Rule 144 or Rule 145
or other exemption from registration under the Securities Act, (y) such
securities have been acquired by the Company or (z) such securities are
able to be sold by a Holder without restriction as to volume or manner of sale
pursuant to Rule 144(k) under the Securities Act.


 


(6)   “Selling Holders” means, with respect to any underwritten
offering, the Holders whose Registrable Securities are included for sale
pursuant to such underwritten offering.


 


(b)   Shelf Registration.


 


16

















 


(1)   As
soon as reasonably practicable following the Closing (but in any event no later
than twenty days after the Closing Date), the Company shall use its reasonable
best efforts to qualify for registration on, and will promptly file, Form S-3
or any comparable or successor form or forms or any similar short-form
registration,  and such
registration will be a “shelf” registration statement providing for the
registration, and the sale on a continuous or delayed basis, of the Registrable
Securities pursuant to Rule 415 (such registration statement, a “Shelf Registration Statement” and such registration, a “Shelf Registration”). In no event shall the Company be
obligated to effect any shelf registration other than pursuant to a short-form
registration. Upon filing a Shelf Registration, subject to Section 3.5(b)(3),
the Company shall keep such Shelf Registration effective with the SEC at all
times and any Shelf Registration shall be re-filed upon its expiration, and the
Company shall cooperate in any shelf take-down by amending or supplementing the
prospectus related to such Shelf Registration as may be requested by the
Holders or as otherwise required, until the Holders who would require such
registration to effect a sale of the Registrable Securities no longer hold the
Registrable Securities (such period of effectiveness, the “Shelf Period”).
The Company shall use its commercially reasonable best efforts to remain a
well-known seasoned issuer (as defined in Rule 405 under the Securities
Act) and to not become an ineligible issuer (as defined in Rule 405 under
the Securities Act) during the Shelf Period.


 


(2)   The
Company shall pay all Registration Expenses incurred in connection with any
Shelf Registration.


 


(3)   The
Company shall be entitled to postpone the filing or initial effectiveness of,
or suspend the use of, any Shelf Registration Statement if the Company gives to
the Holders a certificate signed by the Chief Executive Officer or Chief
Financial Officer of the Company certifying that, in the good faith judgment of
the Board of Directors, such registration, offering or use would (i) be
expected to adversely affect or interfere with any bona fide material financing
of the Company or any material transaction under consideration by the Company
or (ii) require the disclosure of information that has not been, and is
not otherwise required to be, disclosed by the Company and such disclosure, in
the good faith judgment of the Board of Directors, would be expected to
adversely affect the Company or its business or adversely affect or interfere
with any bona fide material financing of the Company or any material
transaction under consideration by the Company; provided that the Company shall not be permitted to do so (x) for
more than 60 days for a given occurrence of such a circumstance, (y) more
than three times during any twelve-month period or (z) for periods
exceeding, in the aggregate, 120 days during any twelve-month period. In the
event the Company exercises its rights under the preceding sentence, each
Holder agrees, severally and not jointly, to suspend, promptly upon its receipt
of the notice referred to above, its use of any prospectus relating to such
registration in connection with any sale or offer to sell Registrable
Securities.


 


(c)   Registration Procedures.
In connection with its obligations with respect to the Shelf Registration
Statement pursuant to Section 3.5(b), the Company shall use its reasonable
best efforts to as expeditiously as possible:


 


17

















 


(1)  
prepare and file with the SEC a Shelf Registration Statement on such form as is
required pursuant to the terms hereof and which shall be available for the sale
of the Registration with respect to such Registrable Securities, make all
required filings with the National Association of Securities Dealers and the
Financial Industry Regulatory Authority and thereafter use its reasonable best
efforts to cause such Shelf Registration Statement to become effective as soon
as reasonably practicable;


 


(2)  
prepare and file with the SEC such amendments and supplements to such Shelf
Registration Statement as may be necessary to keep such Shelf Registration Statement
effective during the period provided for herein, and comply with the provisions
of the Securities Act with respect to the disposition of all securities covered
by such Shelf Registration Statement until such time as all of such securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such Shelf Registration Statement;


 


(3)  
furnish to each Holder such number of copies, without charge, of such Shelf
Registration Statement, each amendment and supplement thereto, including each
preliminary prospectus, final prospectus, any other prospectus (including any
prospectus filed under Rule 424, Rule 430A or Rule 430B under
the Securities Act and any “issuer free writing prospectus” as such term is
defined under Rule 433 promulgated under the Securities Act), all exhibits
and other documents filed therewith and such other documents as such Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Holder;


 


(4)  
register or qualify such Registrable Securities under such other securities or
blue sky laws of such jurisdictions as any Holder (or managing underwriter, if
any, in the case of an underwritten offering) reasonably requests and do any
and all other acts and things that may be reasonably necessary or reasonably
advisable to enable such seller to consummate the disposition in such
jurisdictions within the United States of the Registrable Securities owned by
such Holder (provided that the
Company will not be required to (i) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this subsection, (ii) subject itself to taxation in any such jurisdiction
or (iii) consent to general service of process in any such jurisdiction);


 


(5)  
notify each Holder and upon discovery that, or upon the discovery of the
happening of any event as a result of which, the a prospectus with respect to
any Registration Statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and, as soon as
reasonably practicable, prepare and furnish to such Holder a reasonable number
of copies of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;


 


18














 


(6)  
notify each Holder (i) when the Shelf Registration Statement or the
prospectus or any prospectus supplement or post-effective amendment has been
filed and, with respect to the Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC for amendments or supplements to the Shelf Registration
Statement or to amend or to supplement such prospectus or for additional
information, and (iii) of the issuance by the SEC of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of any
proceedings for any of such purposes;


 


(7)   cause
all such Registrable Securities to be listed on each securities exchange on
which similar securities issued by the Company are then listed or, if no
similar securities issued by the Company are then listed on any securities
exchange, use its reasonable best efforts to cause all such Registrable
Securities to be listed on the New York Stock Exchange or the NASDAQ stock market,
as determined by the Company;


 


(8)  
provide a transfer agent and registrar for all such Registrable Securities not
later than the effective date of the Shelf Registration Statement;


 


(9)   in
the case of an underwritten offering, enter into such customary agreements
(including underwriting agreements and, subject to Section 3.5(g), lock-up
agreements in customary form, and including provisions with respect to
indemnification and contribution in customary form) and take all such other
customary actions as the Selling Holders or the managing underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities;


 


(10)   in
the case of an underwritten offering, make available for inspection by the
Holders’ Counsel, any underwriter participating in any disposition pursuant to
such Shelf Registration Statement and any attorney, accountant or other agent
retained by any such underwriter, all financial and other records, pertinent
corporate documents and documents relating to the business of the Company, and
cause the Company’s officers, directors, employees and independent accountants
to supply all information reasonably requested by any of the foregoing in
connection with such offering, provided that
it shall be a condition to such inspection and receipt of such information that
the inspecting person (i) enter into a confidentiality agreement in form
and substance reasonably satisfactory to the Company and (ii) agree to
minimize the disruption to the Company’s business in connection with the
foregoing;


 


(11)  
timely provide to its security holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;


 


(12)   in
the event of the issuance of any stop order suspending the effectiveness of the
Shelf Registration Statement, or of any order suspending or preventing the use
of any related prospectus or ceasing trading of any securities included in the
Shelf Registration Statement for sale in any jurisdiction, use every reasonable
effort to promptly obtain the withdrawal of such order;


 


19

















 


(13)   in
the case of an underwritten offering, obtain one or more comfort letters,
addressed to the underwriters, if any, dated the effective date of the Shelf
Registration Statement and the date of the closing under the underwriting
agreement for such offering, signed by the Company’s independent public
accountants in customary form and covering such matters of the type customarily
covered by comfort letters as such underwriters shall reasonably request;


 


(14)   in
the case of an underwritten offering, provide legal opinions of the Company’s
counsel, addressed to the underwriters, if any, dated the date of the closing
under the underwriting agreement, with respect to the Shelf Registration
Statement, each amendment and supplement thereto (including the preliminary
prospectus) and such other documents relating thereto as the underwriter shall
reasonably request in customary form and covering such matters of the type
customarily covered by legal opinions of such nature; and


 


(15)   As a
condition to registering Registrable Securities, the Company may require each
Selling Holder to furnish the Company with such information regarding such
person and pertinent to the disclosure requirements relating to the
registration and the distribution of such securities as the Company may from
time to time reasonably request in writing.


 


(d)   Registration Expenses.


 


(1)  
Except as otherwise provided in this Agreement, all expenses incidental to the
Company’s performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities
or blue sky laws, word processing, duplicating and printing expenses, messenger
and delivery expenses, and fees and disbursements of counsel for the Company
and all independent certified public accountants and other persons retained by
the Company (all such expenses, “Registration
Expenses”),  will be
borne by the Company. The Company will, in any event, pay its internal expenses
(including all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit or quarterly
review, the expenses of any liability insurance and the expenses and fees for
listing the securities to be registered on each securities exchange on which
similar securities issued by the Company are then listed or on the New York
Stock Exchange or the NASDAQ stock market. The holders of the securities so
registered shall pay all underwriting discounts, selling commissions and
transfer taxes applicable to the sale of Registrable Securities hereunder and
any other Registration Expenses required by law to be paid by a selling holder pro rata on the basis of the amount of
proceeds from the sale of their shares so registered.


 


(2)   In connection with any underwritten
offering pursuant to the Shelf Registration Statement, the Company will
reimburse the Sellers of Registrable Securities for the reasonable fees and
disbursements of one counsel (“Holders’
Counsel”).


 


20

















 


(e)   Participation in
Underwritten Registrations.


 


(1)   The
Company shall not be required to assist in an underwritten offering unless
requested by the Holders of a majority aggregate face amount of the Registrable
Securities. If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers or manager or managers that will manage
the offering will be selected by the Company and shall be reasonably acceptable
to the Holders of a majority in aggregate face amount of the Registrable
Securities.


 


(2)   None
of the Holders may participate in any registration hereunder that is
underwritten unless such person (i) agrees to sell its Registrable
Securities on the basis provided in the underwriting arrangements entered into
pursuant to this Agreement (including pursuant to the terms of any
over-allotment or “green shoe” option requested by the managing
underwriter(s)), (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements, and (iii) cooperates
with the Company’s reasonable requests in connection with such registration or
qualification (it being understood that the Company’s failure to perform its
obligations hereunder, which failure is caused by such person’s failure to
cooperate with such reasonable requests, will not constitute a breach by the
Company of this Agreement). Notwithstanding the foregoing, the liability of any
Holder participating in such an underwritten registration shall be limited to an
amount equal to the amount of gross proceeds attributable to the sale of such
person’s Registrable Securities.


 


(3)   Each
person that is participating in any registration hereunder agrees that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in Section 3.5(c)(5) or (6), such person will
forthwith discontinue the disposition of its Registrable Securities pursuant to
the Shelf Registration Statement until such person receives copies of a
supplemented or amended prospectus as contemplated by such Section 3.5(c)(5) and/or
until the applicable circumstance referred to in Section 3.5(c)(6) ceases
to exist.


 


(f)   Rule 144. The
Company will use its reasonable best efforts to timely file all reports and
other documents required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder
(or, if the Company is not required to file such reports, it will, upon the
request of a Holder, make publicly available such information as necessary to
permit sales pursuant to Rule 144), all to the extent required from time
to time to enable such person to sell shares of Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144. Upon the request of any Holder, the Company will
deliver to such person a written statement as to whether it has complied with
such information requirements.


 


(g)   Indemnification;
Contribution.


 


(1)   Indemnification
by the Company. The Company shall indemnify and hold harmless each Holder
and each person who controls (within the meaning of Section 15 of the
Securities Act) such Holder from and against any and all losses, claims,
damages, liabilities and expenses, or any action or proceeding in respect
thereof (including 


 


21

















 


reasonable costs of investigation and
reasonable attorneys’ fees and expenses) (each, a “Liability”)
arising out of or based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Disclosure Package or the
Registration Statement (including any prospectus or any amendment or supplement
thereto), and (ii) the omission or alleged omission to state in the
Disclosure Package or the Registration Statement (including any prospectus or
any amendment or supplement thereto) any material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company shall not be liable in any such case to the extent
that any such Liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of the Holder expressly for use therein.


 


(2)   Indemnification
by Holders. Each Holder, severally and not jointly, shall indemnify and
hold harmless the Company, any underwriter retained by the Company, each other
Holder, their respective directors, officers and each person who controls the
Company, such other Holders or such underwriter (within the meaning of Section 15
of the Securities Act) from and against any and all Liabilities arising out of
or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in the Disclosure Package, any Holder Free Writing
Prospectus or the Shelf Registration Statement (including in any prospectus or
any amendment or supplement thereto), and (ii) the omission or alleged
omission to state in the Disclosure Package, any Holder Free Writing Prospectus
or the Shelf Registration Statement (including in any prospectus or any
amendment or supplement thereto) any material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case, to the extent such Liabilities arise out of or are based upon written
information furnished by such Holder or on such Holder’s behalf expressly for
inclusion therein; provided that the total amount to be indemnified by such
Holder pursuant to this Section 3.5(g) shall be limited to the net
proceeds (after deducting the underwriters’ discounts and commissions) received
by such Holder in the offering to which the Shelf Registration Statement,
Disclosure Package or Holder Free Writing Prospectus relates.


 


(3)   Conduct
of Indemnification Proceedings . Any person entitled to indemnification
hereunder (the “indemnified person”) shall give prompt written notice to the
indemnifying party (the “indemnifying person”) after the receipt by the
indemnified person of any written notice of the commencement of any action,
suit, proceeding or investigation or threat thereof made in writing for which
the indemnified person intends to claim indemnification or contribution
pursuant to this Agreement; provided, however, that the failure to so notify
the indemnifying person shall not relieve the indemnifying person of any
Liability that it may have to the indemnified person hereunder (except to the
extent that the indemnifying person forfeits substantive rights or defenses by
reason of such failure). If notice of commencement of any such action is
given to the indemnifying person as above provided, the indemnifying
person shall be entitled to participate in and, to the extent it may wish,
jointly with any other indemnifying person similarly notified, to assume the
defense of such action at its own expense, with counsel chosen by it and
reasonably satisfactory to such indemnified person. The indemnified person
shall have the right to employ separate counsel in any such action and
participate 


 


22

















 


in the defense thereof, but the fees and
expenses of such counsel shall be paid by the indemnified person unless (i) the
indemnifying person agrees to pay the same, (ii) the indemnifying person
fails to assume the defense of such action with counsel reasonably satisfactory
to the indemnified person or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnifying person and the
indemnified person and such parties have been advised by such counsel that
either (A) representation of such indemnified person and the indemnifying
person by the same counsel would be inappropriate under applicable standards of
professional conduct or (B) there may be one or more legal defenses
available to the indemnified person that are different from or additional to
those available to the indemnifying person, in which case the indemnifying
person shall not be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified
persons. No indemnifying person shall be liable for any settlement entered into
without its written consent, which consent shall not be unreasonably withheld. No
indemnifying person shall, without the written consent of such indemnified
person, effect any settlement of any pending or threatened proceeding in
respect of which such indemnified person is a party and indemnity has been
sought hereunder by such indemnified person, unless such settlement includes an
unconditional release of such indemnified person from all liability for claims
that are the subject matter of such proceeding.


 


(4)   Contribution.
If the indemnification provided for in this Section 3.5(g) from the
indemnifying person is unavailable to an indemnified person hereunder in
respect of any Liabilities referred to herein, then the indemnifying person, in
lieu of indemnifying such indemnified person, shall contribute to the amount
paid or payable by such indemnified person as a result of such Liabilities in
such proportion as is appropriate to reflect the relative fault of the
indemnifying person and indemnified person in connection with the actions which
resulted in such Liabilities, as well as any other relevant equitable
considerations. The relative fault of such indemnifying person and indemnified
person shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying person
or indemnified person, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the Liabilities referred to above shall be
deemed to include, subject to the limitations set forth in the foregoing
provisions of this Section 3.5(g), any legal or other fees, charges or
expenses reasonably incurred by such party in connection with any investigation
or proceeding; provided, that the total amount to be contributed by such Holder
shall be limited to the net proceeds (after deducting the underwriters’
discounts and commissions) received by such Holder in the offering. The parties
hereto agree that it would not be just and equitable if contribution pursuant
to this Section 3.5(g) were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to in this paragraph. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.


 


23

















 


ARTICLE IV


 


TERMINATION


 


4.1   Termination. This
Agreement may be terminated (as between the party electing to terminate it and
the counterparty to which such termination is directed):


 


(a)  
by mutual written agreement of the each such party; or


 


(b)  
by either the Company or a Purchaser, upon written notice to the other party,
in the event that the Closing does not occur on or before July 15, 2008; provided, however, that
the right to terminate this Agreement pursuant to this Section 4.1(b) shall
not be available to any party whose failure to fulfill any obligation under
this Agreement shall have been the cause of, or shall have resulted in, the
failure of the Closing to occur on or prior to such date.


 


4.2   Effects of Termination.
In the event of any termination of this Agreement as provided in Section 4.1,
this Agreement (other than Article V, which shall remain in full force and
effect) shall forthwith become wholly void and of no further force and effect; provided that nothing herein shall relieve
any party from liability for intentional breach of this Agreement.


 


ARTICLE V


 


MISCELLANEOUS


 


5.1   Survival. Each of the
representations and warranties set forth in this Agreement shall survive the
Closing under this Agreement but only for a period of one year following the
Closing Date (or until final resolution of any claim or action arising from the
breach of any such representation and warranty, if notice of such breach was
provided prior to the first anniversary of the Closing Date) and thereafter
shall expire and have no further force and effect, including in respect of Section 3.4.
Except as otherwise provided herein, all covenants and agreements contained
herein, other than those which by their terms are to be performed in whole or
in part after the Closing Date, shall terminate as of the Closing Date.


 


5.2   Standard. Notwithstanding
anything that may be to the contrary herein, no representation or warranty of
the Company hereunder shall be deemed to be untrue, inaccurate or incorrect for
any purpose of this Agreement, and the Company shall not be deemed to have
breached a representation or warranty (disregarding all qualifications or
limitations set forth in such representations and warranties as to “materiality”,
“Material Adverse Effect” and words of similar import) for any purpose under
this Agreement, including for purposes of Section 3.4, in any case as a
consequence of the existence or absence of any fact, circumstance or event
unless such fact, circumstance or event, individually or when taken together
with all other facts, circumstances or events inconsistent with any of such
representations or warranties, has had or would reasonably be expected to have
a Material Adverse Effect.


 


24

















 


5.3   Amendment. No
amendment or waiver of any provision of this Agreement will be effective with
respect to any party unless made in writing and signed by an officer of a duly
authorized representative of such party.


 


5.4   Waivers. The
conditions to each party’s obligation to consummate the Closing are for the
sole benefit of such party and may be waived by such party in whole or in part
to the extent permitted by applicable law. No waiver of any party to this
Agreement, as the case may be, will be effective unless it is in a writing
signed by a duly authorized officer of the waiving party that makes express
reference to the provision or provisions subject to such waiver.


 


5.5   Counterparts and Facsimile.
For the convenience of the parties hereto, this Agreement may be executed in
any number of separate counterparts, each such counterpart being deemed to be
an original instrument, and all such counterparts will together constitute the
same agreement. Executed signature pages to this Agreement may be
delivered by facsimile and such facsimiles will be deemed as sufficient as if
actual signature pages had been delivered.


 


5.6   Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State. The parties hereby
irrevocably and unconditionally consent to submit to the exclusive jurisdiction
of the state and federal courts located in the Borough of Manhattan, State of
New York for any actions, suits or proceedings arising out of or relating to
this Agreement and the transactions contemplated hereby.


 


5.7   WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


5.8  Notices. Any notice,
request, instruction or other document to be given hereunder by any party to
the other will be in writing and will be deemed to have been duly given (a) on
the date of delivery if delivered personally or by telecopy or facsimile, upon
confirmation of receipt, (b) on the first business day following the date
of dispatch if delivered by a recognized next-day courier service, or (c) on
the third business day following the date of mailing if delivered by registered
or certified mail, return receipt requested, postage prepaid. All notices hereunder
shall be delivered as set forth below, or pursuant to such other instructions
as may be designated in writing by the party to receive such notice.


 


(a)   If to a Purchaser at the
address indicated on such Purchaser’s signature page.


 


(b)   If to the Company:


 


Washington Mutual

Legal Department

1301 Second Avenue, WMC 3501

Seattle, Washington 98101

Attn: Charles Smith

Facsimile: (206) 377-2236


 


25

















 


with a copy to (which copy alone shall not constitute notice):


 


Simpson Thacher & Bartlett LLP 

425 Lexington Avenue

New York, New York 10017

Attn: Lee Meyerson
          Maripat Alpuche

Telephone: (212) 455-2000

Fax: (212) 455-2502


 


5.9   Entire Agreement, Etc.
(a)  This Agreement (including the Exhibits, Schedules and Disclosure
Schedules hereto) constitutes the entire agreement, and supersedes all other
prior agreements, understandings, representations and warranties, both written
and oral, among the parties, with respect to the subject matter hereof; and (b) this
Agreement will not be assignable by operation of law or otherwise (any
attempted assignment in contravention hereof being null and void). Without
limiting the foregoing, none of the rights of any Purchaser (other than the
registration rights set forth in Section 3.5) hereunder shall be assigned
to, or enforceable by, any person to whom a Purchaser may Transfer Securities.


 


5.10   Other Definitions.
Wherever required by the context of this Agreement, the singular shall include
the plural and vice versa, and the masculine gender shall include the feminine
and neuter genders and vice versa, and references to any agreement, document or
instrument shall be deemed to refer to such agreement, document or instrument
as amended, supplemented or modified from time to time.


 


(a)   the term “Affiliate”
means, with respect to any person, any person directly or indirectly
controlling, controlled by or under common control with, such other person. For
purposes of this definition, “control”  (including, with correlative meanings,
the terms “controlled by”  and “under
common control with”)  when
used with respect to any person, means the possession, directly or indirectly,
of the power to cause the direction of management or policies of such person,
whether through the ownership of voting securities by contract or otherwise;


 


(b)   the word “or”  is
not exclusive;


 


(c)   the words “including,” “includes,” “included”  and “include”  are deemed to be followed by the words “without
limitation”; and


 


(d)   the terms “herein,” “hereof”  and “hereunder”  and other words of similar import refer
to this Agreement as a whole and not to any particular section, paragraph or
subdivision;


 


(e)   “business day”  means
any day except Saturday, Sunday and any day which shall be a legal holiday or a
day on which banking institutions in the State of New York or in the State of
Washington generally are authorized or required by law or other governmental
actions to close;


 


26

















 


(f)   “person”  has
the meaning given to it in Section 3(a)(9) of the Exchange Act and as
used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act; and


 


(g)   all article, section,
paragraph or clause references not attributed to a particular document shall be
references to such parts of this Agreement, and all exhibit, annex and schedule
references not attributed to a particular document shall be references to such
exhibits, annexes and schedules to this Agreement.


 


5.11   Captions. The
article, section, paragraph and clause captions herein are for convenience of
reference only, do not constitute part of this Agreement and will not be deemed
to limit or otherwise affect any of the provisions hereof.


 


5.12   Severability. If any
provision of this Agreement or the application thereof to any person or
circumstance is determined by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions hereof, or the application of
such provision to persons or circumstances other than those as to which it has
been held invalid or unenforceable, will remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby, so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination, the parties shall negotiate in good faith in an effort to agree
upon a suitable and equitable substitute provision to effect the original
intent of the parties.


 


5.13   No Third Party
Beneficiaries. Nothing contained in this Agreement, expressed or implied,
is intended to confer upon any person or entity other than the parties hereto,
any benefit right or remedies, except that the provisions of Section 3.4
shall inure to the benefit of the persons referred to in that Section.


 


5.14   Time of Essence. Time
is of the essence in the performance of each and every term of this Agreement.


 


5.15   Specific Performance.
The parties agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms. It is accordingly agreed that the parties shall be entitled to
seek specific performance of the terms hereof, this being in addition to any
other remedies to which they are entitled at law or equity.


 


* * *


 


27

















 


[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]


 


 


IN
WITNESS WHEREOF, this Agreement has been duly executed
and delivered by the duly authorized officers of the parties hereto as of the
date first herein above written.


 


	
   

  	
  WASHINGTON
  MUTUAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   Name:

  
	
   

  	
   

  	
   Title:

  



 


28

















 


[SIGNATURE
PAGE TO SECURITIES PURCHASE AGREEMENT]


 


 


Accepted and Agreed as of the date first
above written:


 


 


	
   

  	
   

  	
   

  
	
   

  	
  Name of Purchaser

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  [PLEASE SIGN ABOVE THIS LINE]

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


	
  Aggregate number of shares of Common Stock to be purchased by you:
                                                      
  shares

  
	
   

  
	
  Price per share applicable to the purchase by you of the Common
  Stock:                                                 

  	
  $8.75

  	
   

  
	
   

  
	
  Aggregate number of shares of Convertible Preferred Stock to be
  purchased by you:                                                       shares

  
	
   

  
	
  Price per share applicable to the purchase by you of the Convertible
  Preferred Stock:                                                  

  	
  $100,000

  	
   

  
	
   

  
	
  Nominee (name in which the shares of Common Stock are to be
  registered, if different than name of Purchaser):                                                     

  
	
   

  
	
  Taxpayer Identification Number (if acquired in the name of a Nominee,
  the taxpayer I.D. No. of such Nominee):                                                     

  
	
   

  
	
  Nominee (name in which the shares of Convertible Preferred Stock are
  to be registered, if different than name of Purchaser):                                                     

  
	
   

  
	
  Taxpayer Identification Number for Convertible Preferred Stock
  Nominee (if acquired in the name of a Nominee, the taxpayer I.D. No. of
  such Nominee):

  
					



 


29